Cowardly court backs off Memorial case: James Gill

Faced for once with truly momentous and controversial issues, the state Supreme Court has lived up to expectations and chickened out. It was only by the narrowest of margins, but the court refused writs in the Memorial Hospital post-Katrina euthanasia case. An opinion handed down last year by the Court of Appeal stands, and former Attorney General Charlie Foti's investigative files will remain forever secret.

View full sizeKathy Anderson / The Times-PicayuneMemorial Hospital in New Orleans was flooded when levees failed in the wake of Hurricane Katrina in 2005.

Maybe not that secret, because we know the files contain evidence of lethal drugs administered to at least some of the 34 patients who perished. The decision will not discourage speculation that medical staff were allowed to get away with murder. Anyone who is in the hospital the next time a hurricane strikes will be entitled to feel very nervous.

This was a nettle the Supreme Court had an obvious obligation to grasp, but only justices Bernette Johnson, Jeffrey Victory and Greg Guidry voted to do so.

Of one patient who died at the hospital, Dr. Ewing Cook told a reporter that he "hastened her demise." When doctors give large doses of morphine to basket cases, the intention, Cook explained, is to "kill 'em." New Orleans DA Leon Cannizzaro, who has the fruits of Foti's labors stashed in his office, has testified that "human beings were killed as a result of actions by doctors" at Memorial, although he added that does not mean criminal charges would hold up.

Cannizzaro joined current Attorney General Buddy Caldwell in opposing release of the files. After what happened to Foti, they evidently want to forget about Memorial. A craven Supreme Court is just what the doctor ordered.

Except for Foti, for whom the files might provide some vindication after the Memorial investigation apparently cost him re-election. Caldwell won after lambasting Foti over his arrest of Dr. Anna Pou and two nurses who were on duty at Memorial after the storm.

The responsibility for any prosecution lay with then-New Orleans DA Eddie Jordan, who impaneled a grand jury to consider indicting Pou for murder. This was not a popular cause; the prevailing view seemed to be that any medics who remained in the hellish conditions at Memorial after the storm could be nothing but saints.

It is commonly said that a DA can indict a ham sandwich, although, if there is an exception to that rule, Jordan might have been it. Maybe, as Foti alleged, Jordan did not pursue the case vigorously. He did, however, grant the nurses immunity to testify, but the grand jury still came back with a no-true bill.

The truth about what happened at Memorial being of compelling public interest, The Times-Picayune and CNN sought the Foti files, which state law decrees must be released unless "criminal litigation" is "reasonably anticipated." District court judge Don Johnson ruled for the media, but was overturned on appeal. The case then went to the Supreme Court, which ordered Johnson to conduct another hearing on whether criminal charges really were a reasonable possibility.

Clearly they were not. Cannizzaro himself testified that nobody would be charged unless new evidence should suddenly materialize. Release the files, Don Johnson again ordered.

The appeal court reversed again, noting, "DA Cannizzaro said the release of criminal investigative files sets a horrible precedent providing the potential for the abuse of witnesses and the fear of retaliation. AG Caldwell cautioned that release of the criminal investigative files in this instance may turn the judiciary into a public records request initiative every time a grand jury returns a no-true bill."

So what? If the law says the records are public, prosecutors must live with any inconvenience. Whether prosecution is reasonably anticipated, moreover, is a factual, not a legal question, so Don Johnson should not have been overturned save for manifest error, which nobody has alleged.

Clearly Don Johnson got it right. If any medics were going to be charged it would have happened by now. The patients who died were evidently terminally ill anyway and could not be moved. Maybe death was a mercy, which does not make it legal but does make "criminal litigation" even more unlikely.

It takes guts to grapple with a case that had evoked such strong passions. That lets the Supreme Court out.

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James Gill is a columnist for The Times-Picayune. He can be reached at jgill@timespicayune.com.